For the week of November 21, 2010, the Dallas Court of Appeals issued sixteen opinions in civil cases. Nine of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement). The remaining seven cases are follows:
Alliance Royalties, LLC v. Boothe (05-09-01471-CV) – Recites well-established (1) standard for reviewing order declining a special appearance; and (2) rule that it is the province of the trier of fact to pass upon the credibility of evidence introduced before it and to accept all, part, or none of it.
Forest Chevrolet Cadillac, Inc. v. GMAC, LLC (05-10-00838-CV) – Recites well-established rule that a corporate cannot proceed in prosecuting an appeal without counsel.
Frito-Lay, Inc. v. Trinity Universal Ins. Co. (05-08-01263-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when multiple grounds are raised in a motion for summary judgment and the trial court does not specify the grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious; (3) rule that, if an appellant does not challenge each possible ground on which summary judgment could have been granted, a court of appeals must uphold the summary judgment on the unchallenged ground; and (4) rule that, if an insurance policy is susceptible to more than one reasonable interpretation, any ambiguity is resolved in favor of coverage.
In re Cole (05-10-01401-CV) – Recites well-established rule that court of appeals does not have mandamus jurisdiction over the district clerk.
JJW Dev., LLC v. Stand Sys. Eng’g, Inc. (05-10-01359-CV) – Recites well-established rule that (1) an appellate court may extend the notice of appeal deadline if, within fifteen days after the deadline, the appellant files a motion that sets forth a reasonable explanation for the need for extension; and (2) rule that an explanation that shows a conscious or strategic decision to wait to file the notice of appeal is not reasonable.
Rothacker v. Rockwall County Dist. Court (05-10-00594-CV) – Recites well-established rule that county courts have jurisdiction to issue writs of mandamus in civil cases when the amount in controversy exceeds $200 but does not exceed $10,000 or where the writ is necessary to the enforcement of the county court’s jurisdiction.
Tucker v. Tucker (05-09-01203-CV) – Recites well-established (1) rule that, in reviewing a default judgment, there are no presumptions of valid issuance, service, and return of citation; (2) rule that, to withstand a direct attack, strict compliance with the rules of service of citation must affirmatively appear on the record; (3) rule that the return of citation constitutes prima facie evidence of the facts asserted therein; (4) rule that a defendant who makes an appearance following service of process must be given notice of any trial setting; (5) rule that, if a defendant fails to answer after being served, the plaintiff has no legal duty to notify the defendant before taking a default judgment on the causes of action in the served petition; (6) general rule that, other than proof of unliquidated damages, no evidence is required to support a default judgment because a defendant’s failure to appear or answer is taken as an admission of the factual allegations in the plaintiff’s petition; (7) in a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer; (8) in a family law case, the party asserting separate property has the burden of rebutting the community property presumption by clear and convincing evidence; (9) in a family law case, there must be some reasonable basis in the record to support the trial court’s division of the community estate; (10) rule that the legal and factual sufficiency of evidence supporting an award of unliquidated damages after a default judgment may be challenged on appeal; (11) rule that, for an award of mental anguish damages to survive a legal sufficiency challenge, a plaintiff must present direct evidence of the nature, duration, and severity of her mental anguish which establishes a substantial disruption in her daily routine; (12) rule that, to prove the reasonableness and necessity of medical services, a plaintiff must either submit an affidavit or provide expert testimony; and (13) rule that, if a plaintiff fails to present legally sufficient evidence of unliquidated damages in a default judgment case, the proper appellate disposition is to remand for a new trial on damages.